Not for publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 14-2036

JOSEPH T. KING, Administrator for the Estate of Gertrude King,

Plaintiff, Appellant,

v.

PIERCE MANUFACTURING, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Barron, Selya, and Stahl, 

Circuit Judges.

David E. Cunningham, with whom Burke & Foskett, LLC was on

brief, for appellant.

Anthony J. Colucci, III, with whom Marybeth Priore and Colucci

& Gallaher, P.C. were on brief, for appellee.

May 4, 2015
STAHL, Circuit Judge. Plaintiff-Appellant Joseph T.

King, as the administrator for the Estate of Gertrude King, appeals

from an order granting summary judgment to Defendant-Appellee

Pierce Manufacturing, Inc. ("Pierce") on claims that the allegedly

defective fire truck it manufactured was responsible for the

decedent's death.

Gertrude King ("Gertrude") was standing on the median of

a Cambridge, Massachusetts road in January, 2010, when the nozzle

of a loose hose on a passing fire truck forcefully struck her. She

was rushed to the hospital and underwent emergency surgery, but

died two days later as a result of her injuries.

The hose that hit Gertrude belonged to a Cambridge Fire

Department ("CFD") truck manufactured by Pierce. Pierce builds

custom trucks for fire departments throughout the United States. 

Each apparatus is built according to the specifications of the

particular fire department, which may choose from the hundreds of

thousands of features that Pierce offers, or request special

components. Consequently, it is up to the individual fire

department to design its trucks, including the hose storage area —

its length and width, the specifications of the hose bed covers and

hose capacity, and the materials used. 

Pierce manufactured the fire truck at issue in 2002. In

conformance with the CFD's specifications, the truck was built with

two "crosslay" hose beds — used for storing the 200-foot hose — one

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with 1.5-inch outlets and one with a 2.5-inch outlet. Crosslay

covers were installed over each hose bed for the purpose of

securing the hose and protecting it from the weather. Because the

CFD's specifications did not call for it, Pierce did not install a

supplemental hose restraint in addition to the crosslay cover,

although such a feature was available.1

Joseph T. King ("King"), nephew of Gertrude and

administrator of her estate, filed suit against Pierce in

Massachusetts state court; Pierce removed to federal district

court. King's complaint alleged breach of warranty, negligent

design, and wrongful death. Pierce thereafter retained an expert,

Dr. Dennis Guenther, a professor of mechanical engineering at The

Ohio State University and a project engineer at a forensic

engineering firm. After performing an accident and design analysis

of the fire truck in question, Dr. Guenther prepared a report

concluding that the truck was not defective or unreasonably

dangerous. He opined that the truck was "of good overall design"

and that there was no evidence that Pierce had engaged in wanton

conduct or had disregarded public safety. Rather, according to Dr.

1

 At the time of the manufacture of the fire truck in question

in 2002, per National Fire Protection Association Standard 1901,

fire trucks were not required to be equipped with redundant hose

restraints. However, in 2005 — after the truck's manufacture but

prior to the accident at issue — Standard 1901 was amended to

require that all fire trucks manufactured after November 15, 2005

be equipped with hose restraints.

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Guenther, the improper stowing of the hose in the hose beds had

caused the accident.

Because King failed to disclose any experts by the

district court's deadline, Pierce moved to preclude King from

offering any expert testimony at trial. After the district court

granted the motion, Pierce followed up with a motion for summary

judgment. Pierce argued, inter alia, that it was entitled to

judgment on King's negligent design and breach of warranty claims,

which could not be proven in the absence of expert testimony. The

district court agreed and entered summary judgment for Pierce,

ruling that expert testimony was necessary to King's case and that

without it the jury would not be able to rely on common knowledge

to determine the cause of the accident.2 

On appeal, King challenges the district court's

determination that his claims required presentation of expert

testimony. He argues that jurors could find, based on lay

knowledge, that the absence of hose restraints in a fire truck

constituted a design defect that exposed pedestrians to an

unreasonable risk of injury.

In a diversity action such as this one, "whether expert

testimony is required is a matter of state law." Beaudette v.

2 The district court further held that King's "argument also

founder[ed] on the issues of foreseeability and intervening cause,"

King v. Pierce Mfg., Inc., No. 13-10150-RGS, 2014 WL 4351599, at *4

(D. Mass. Sept. 2, 2014), matters that we need not address in this

opinion, as we rule solely on the basis of expert testimony. 

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Louisville Ladder, Inc., 462 F.3d 22, 27 (1st Cir. 2006). Under

Massachusetts law, both negligent design and breach of warranty

claims require proof of a design defect or an unreasonably

dangerous condition that existed when the product left the

defendant's control. See Enrich v. Windmere Corp., 416 Mass. 83,

87–89 (1993). The presence of a defect, in turn, typically "cannot

be inferred in the absence of expert testimony." Id. at 87. Such

testimony is required in complex product liability cases in order

to mitigate against jury "conjecture and surmise" regarding the

cause of the injuries at issue and the relevant standard of care. 

Triangle Dress, Inc. v. Bay State Serv., Inc., 356 Mass. 440, 441

(1969); see also Hochen v. Bobst Grp., Inc., 290 F.3d 446, 451 (1st

Cir. 2002) (applying Massachusetts law).

This case falls squarely within the ambit of the experttestimony rule. While a fire truck is certainly a common sight on

city streets, lay knowledge does not extend to the design of the

vehicle's hose bed and the relative propriety of different types of

hose restraints. As the Massachusetts Appeals Court has observed

in relation to an escalator, "[b]y its nature, [a fire truck] is a

complex, technical piece of machinery, whose design and operational

requirements are not straightforward. Accordingly, any

determination of the dimensions essential to its safe operation is

generally beyond the scope of an average person's knowledge." 

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Esturban v. Mass. Bay Transp. Auth., 68 Mass. App. Ct. 911, 911–12

(2007) (collecting cases). 

Unlike in cases involving defects so obvious as to not

require expert testimony, jurors here cannot be expected to intuit

that a hose stored in a bed equipped with crosslay covers but not

redundant hose restraints would be likely to come loose in a manner

that threatens pedestrian safety. "Without the aid of an expert

in the field, jurors would also be left to speculate about whether

alternatively engineered designs might have prevented the

accident." Id. at 912. Contra Smith v. Ariens Co., 375 Mass. 620,

625 (1978) ("It is within the knowledge of a jury whether

unshielded metal protrusion on the handle bar of a snowmobile

constitute a defect in design which creates an unreasonable risk of

harm."); Hayes v. Hobart Corp., 7 Mass. App. Ct. 889, 889 (1979)

("It was open to the jury to find on their own examination of the

food chopper and photographs thereof that the defendant had been

negligent in designing a machine which readily permitted the user's

fingers to reach the cutting blades."). Furthermore, where the

manufacturer offered various hose-restraint options but the fire

department chose not to order them, an average juror would not know

who bore responsibility for ensuring that trucks were equipped with

adequate restraints.

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Given King's obligation to provide expert testimony to

support his claim and his failure to offer any before the deadline,

we AFFIRM the judgment of the district court.

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